08 October 2006 by Published in: General musings 6 comments

I’ve not been shy about stating my opinions about copyright protection issues, generally in the context of Google’s scheme to engage in copyright infringement on an unprecedented scale.

Many of you are familiar with the site YouTube, where people can post videos on the Internet and where they can be downloaded for free. YouTube is coming under increasing scrutiny due to copyright infringement concerns. While the networks haven’t gone after it yet, that day will come, probably much sooner than later. Here’s an article that appeared on CNet earlier this week:

Another Internet research firm has predicted doom for YouTube’s business model.

Copyright issues that have plagued video-sharing site YouTube since its official launch almost a year ago will mean that “YouTube will get sued. And it will lose,” wrote Josh Bernoff and Ted Schadler, analysts for Forrester Research, on a blog posted last week.

Lawsuits will trigger a chain reaction, according to the analysts, in which YouTube will be forced to remove all copyrighted material–and that means excising most of the professionally made content. What’s left will leave YouTube with videos that are “a lot less interesting,” said the Forrester analysts.

YouTube representatives did not respond to an interview request.

The Forrester opinion comes three months after research firm IDC came to a similar conclusion and less than a week after HDNet founder Mark Cuban told a group of advertisers that “only a moron would buy YouTube.” Both Forrester and IDC research companies argue that YouTube will face the same battle fought and lost by file-sharing site Napster.

In a now-famous court case, Napster argued unsuccessfully that it wasn’t responsible for people misusing its file-sharing system to steal music.

YouTube says much the same thing. Most of the material on YouTube is homemade, meaning that the video’s creator is the same person who posts it to the site. However, some YouTube fans violate copyright law by sharing video of copyright material from movies, music videos and TV shows.

YouTube executives immediately pull down any clip once a copyright violation is brought to their attention. The company, which sees more than 16 million visitors per month, is also creating technology that will help identify and block pirated material.

San Mateo, Calif.-based YouTube has proven that it’s not at odds with some of the most influential entertainment companies by cutting marketing and advertising deals with the likes of Warner Music and NBC.

But that won’t be enough, said Forrester.

“You may tell me that companies like Warner Music are happy to work with YouTube, just as Bertelsmann was willing to work with Napster,” the analysts wrote. “But for every company that wants to do a Warner-type deal, there will be others like Universal that won’t stand for it.

“It only takes one unhappy media company–Disney, Sony, CBS or News Corp. for example–to force the company’s hand. And the cases on this point, from Napster to Grokster at the Supreme Court, are clear.”

Here’s a link to the Grokster decision, handed down earlier this year by the United States Supreme Court. In Grokster, the Court addressed a challenge to the system of downloadable file-sharing of copyrighted music and film files on a peer-to-peer network. These ubiquitous networks have led to a proliferation of copyright infringement by permitting the distribution of copyrighted material for free. In short, the complaint against Grokster and its kind is that the copyrighted material is distributed for free, with no compensation to either the artist of the record company.

The U. S. Supreme Court found that “the unlawful objective is unmistakable,” and held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. We are, of course, mindful of the need to keep from trenching on regular commerce or discouraging the development of technologies with lawful and unlawful potential. Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U.S. at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable expression and conduct, and thus does nothing to compromise legitimate commerce or discourage innovation having a lawful promise.”

There’s not much doubt in my mind that the same thing will hapen to YouTube if and when there is a challenge. And that day will come, probably much sooner than later.

My point in raising all of this is that as someone who is intensely worried about protection of my intellectual property rights, I’m glad to see that the tide seems to be shifting a bit in favor of the owners of intellectual property. I will be waiting to see what the outcome of the Google litigation is, but I am very hopeful that Google will lose and the intellectual property rights of authors and artists will be further protected, even in this digital age.

Not surprisingly, by the way, Google is apparently trying to acquire YouTube.

Scridb filter


  1. J. Avalon
    Sun 08th Oct 2006 at 8:10 pm


    Been watching this with much interest. The latest internet speculation is that Google wants to buy YouTube. Of course we know Google has little regard for intellectual property rights, as shown by their “books-online” program (or whatever they’re calling it now). So I’d be interested in your opinion as a lawyer on this possible buyout. Will Google be willing to buy a company which obviously has much litigation headed its way? And is there a better chance that they’ll get away with it if they’re owned by Google than not? After all, Google seems to be getting away with their blatant violation of author’s rights. A lawyer’s opinion?

  2. Sun 08th Oct 2006 at 8:15 pm


    I think it would be an incredilby foolish thing for them to do–it would be buying a pig in a poke, a they would acquire the liability with it.

    But, your point about Google is well-taken. They’ve been running roughshod over copyright rights for too long, which is part of the reason why I’ve been so vehement in my opposition to the Google book scanning program. If the truth be told, I don’t see a whole lot of difference between the copyright infringement involved in the book scanning program and the sort of copyright infringement that goes on on YouTube all the time.


  3. Chuck
    Mon 09th Oct 2006 at 11:43 am

    It should be interesting. Technology is turning everything on its head.
    There are differences though between music files (Napster) and YouTube (Video).

    Unlike Napster, where you could anonymously post files, videos posted on Youtube identify the poster. The poster is therefore violating copyright if they are posting videos of which they own no rights. This is similar to if I went to a library and copied an entire book. In that case I would be violating copyright, not the library even though they are supplying the technology (the copy machine) that allows it. Liability for Youtube (as it did with Napster) really comes with turning a blind eye to the situation, which Youtube appears to be solving with contracts.

    Also, unlike much of Napster, there are legitimate uses for Youtube. People can post (and are posting in droves, far more than copyright works), videos they create. Thus the technology can be shown to be used in a predominently legal way.

    It should also be pointed out that the quality of the video is not as good as the original (at least not yet). Therefore, unlike music files, you would not be getting a good clean copy of the original. Fans of a show or band would still want to purchase the original for a good copy.

    Because of the quality issue, I’m not sure the music companies are too upset about posting music videos derived from VHS recorded off MTV in 1986. These videos were specifically created for promotion. Lots of people recorded them onto VHS back then (technically illegal, as is any VHS recording). Posting that kind of quality video does more good than harm for the music companies. A whole new generation are rediscovering the music of the 80s!! Now if the quality gets to be DVD quality……

  4. Scott Smart
    Mon 09th Oct 2006 at 4:16 pm

    From an infringement standpoint, I think the potentially bigger problem is that most home-made videos include copyrighted music. Except for some things like music videos, many of the copyright video content I have seen (though I admit I am not a heavy user) seem to be samples. From a legal standpoint I doubt these samples would be considered a fair use, but from a business standpoint it might not be so bad to have what amounts to a “trailer” posted on youtube.

  5. Tue 10th Oct 2006 at 12:43 am


    This is my revised attempt to address this issue. In all seriousness, I am curious how you distinguish between the kinds of things Google is proposing to do, and reproducing newspaper or magazine articles in full — something that has become commonplace on web-based blogs, newsletters, etc.

    In the last several days, for example, you have reprinted copyrighted material in full (the Mercury News article, and the CNET and Tennessean pieces). Each of those sites has explicit prohibitions on reproducing their property without permission (and pardon me if, in fact, you did get permissions on those).

    I only raise the issue because it’s a peculiar phenomenon that seems most commonly to do with journalism. It’s ironic that reprinting the article about Google’s potential copyright infringement was itself an infringement of the copyright held by the Mercury News, or the author of the piece.

    It’s as if people (not just you) assume a printed newspaper article is somehow in the public domain, or that naming the source is the same thing as permission.

    I don’t know why that is, but am curious if you have a legal perspective on it. Obviously, newspapers rarely go to the trouble of defending their rights in that arena — a newsletter author, for example, is not necessarily making money off reprinting copyrighted articles, though it does potentially keep people from visiting the newspaper’s web site, seeing their advertiser’s ads, and so on.


  6. Tue 10th Oct 2006 at 9:47 am


    I understand your point and appreciate it.

    In some ways, what you raise is something of a red herring, but I really don’t have a legal perspective on it. Frankly, it’s something I hadn’t even considered, but probably should.


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